Note: An appeal pursuant to s.604 (C2009/10852) was lodged against this decision - refer to Full Bench decision dated 3 May 2010 [[2010] FWAFB 3258] for result of appeal.
[2009] AIRC 893 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
COMMISSIONER DEEGAN |
CANBERRA, 16 OCTOBER 2009 |
Termination of Employment.
[1] The matter arises from an application filed on 8 April 2009 under s.643(1)(a) of the Workplace Relations Act 1996 (“the Act”) by Mr Nick Kolodjashnij (“the applicant”) for relief in relation to alleged termination of his employment by Lion Nathan trading as J Boag and Son Brewing Pty Ltd (“the respondent”).
[2] Following an unsuccessful conciliation conference held on 1 May 2009, on 6 May the applicant filed a notice of election to proceed to arbitration.
[3] Directions were issued by the Commission and the matter was set down for hearing on 11 August 2009. At the hearing, Mr Peter Tullgren, Liquor, Hospitality and Miscellaneous Union (“LHMU”) appeared on behalf of the applicant and Mr Richard Dalton of counsel appeared for the respondent.
Background
[4] The facts of the matter are not in dispute.
[5] On Friday 27 March 2009, in the evening the applicant, who was a process worker in the packaging department at the James Boags Brewery (a division of Lion Nathan Pty Ltd), was charged with driving his vehicle with a blood alcohol content of 0.154.
[6] On his return to work on 30 March 2009 the applicant advised his supervisor of the incident. On the same day, after an initial meeting with representatives of management, the applicant was stood down on full pay. Two further meetings with management, at which the applicant was accompanied by a union representative, were held over the ensuing three days. On 2 April 2009, by letter from the respondent, the applicant’s employment was terminated.
The Applicant’s Evidence
[7] The applicant called no evidence in support of his application. It was submitted that, as the facts were not in dispute, the issue for determination was whether, in light of those facts, the termination of the applicant’s employment was harsh unjust or unreasonable.
The Respondent’s Evidence
[8] The respondent relied on the evidence of three witnesses.
[9] Mr James Tait, Corporate Affairs Director for Lion Nathan Limited, gave evidence by written statement 1 and was cross-examined.
[10] Mr Tait’s evidence outlined the nature of the respondent’s business and emphasised the increasing importance of the “brand” and the reputation of the company, including the necessity for the respondent to “establish and build the trust of the community in Lion Nathan as a responsible producer and marketer of alcoholic beverages.” He noted that it was critical that “from our perspective from both a corporate social responsibility viewpoint and a brand viewpoint, that as an organisation we demonstrate leadership on responsible drinking. Leadership means we set an example as an organisation.” Mr Tait’s evidence described at length the measures adopted by the respondent to put that resolve into effect, including voluntarily imposing an alcohol limit on “ready-to-drink” beverages; making financial contributions to alcohol research, to organisations that provide educational and counselling services promoting responsible alcohol use, and to “Drinkwise”, an organisation which fosters “innovative thinking and new approaches to developing and maintaining a safe drinking culture”.
[11] According to the evidence of Mr Tait it is the respondent’s belief that the promotion of responsible drinking is important to the company’s long term success and, therefore, the company must not act “inconsistently with the responsible drinking message so as not to undermine its credibility and thus its ability to influence the debate.” 2
[12] At paragraphs 31 and 32 of his statement Mr Tait states:
“An incident where a representative of Lion Nathan has misused alcohol, particularly in a manner that constitutes unlawful behaviour such as drink driving, has the potential seriously to undermine our credibility in this area. It has the potential seriously to undermine our ability to contribute as a bona fide partner with Government and Non Government Organisations to promote a responsible drinking culture in our society.
Drink driving is especially serious. Employees who engage in this behaviour place our reputation in this area at serious risk. It is unlawful behaviour which presents a clear risk to oneself and other road users. If the employee is caught and charged, it would generally be the subject of a public hearing in Court. There is always the risk that this could be the subject of some media coverage which may disclose directly or indirectly the association of the employee with our organisation.”
[13] The second witness was Mr Robert Barbour, People and Culture Director of Lion Nathan. His witness statement 3 reinforced the evidence given by Mr Tait, particularly the respondent’s commitment to responsible drinking. He noted that the respondent expects its employees to behave consistently with the respondent’s “values and our commitment to sociability” as “(o)ur ability to present Lion Nathan to our stakeholders and the community as a responsible producer and marketer of alcoholic beverages depends on how we behave as an organisation on this issue. Our credibility in this regard is determined to a large extent by the behaviour of our people.”4
[14] Mr Barbour noted that all employees of the respondent were made aware of the respondent’s Responsible Drinking Policy (which had been in effect for about 5 years) the promulgation of which was “central to promoting and encouraging responsible drinking within our organisation.” 5
[15] It was Mr Barbour’s evidence that the respondent does not attempt to regulate the manner in which employees use alcohol out of work hours with the exception that they are required “not to engage in alcohol related behaviour out of work hours that has the potential to adversely affect Lion Nathan’s reputation and credibility as a producer and marketer of alcoholic beverages committed to promoting the responsible use of alcohol”. Further, it was his evidence that “driving whilst under the influence of alcohol is one of the clearest and most serious examples of irresponsible use of alcohol”. He noted that drink driving offences are criminal offences and are the subject of public hearings which are likely to be reported in the media and that there was a risk that the applicant might be identified publicly as a Lion Nathan employee, particularly given that his offence was a serious breach of the relevant laws.
[16] Mr Barbour stated that the applicant had attended a session on the respondent’s Responsible Drinking Policy, understood the policy and the clear requirement that Lion Nathan employees not drink and drive. Despite this knowledge the applicant had committed a “high range” infringement of the drink driving laws. In the circumstances his employment was terminated, notwithstanding his 8 years of service and otherwise good record with company. According to Mr Barbour it was necessary that Lion Nathan enforce its clearly communicated policy or risk undermining its core values and culture. Finally, he noted that such a serious breach of the policy would normally result in termination of employment although factors such as knowledge, wilfulness and justification would be taken into account.
[17] The statement 6 of Ms Adele Cashion, Operations Capability Leader for the respondent, described the training the applicant had received in the respondent’s Responsible Drinking Policy. It was her evidence that the training made it clear to employees that if they were caught drink driving, even outside of work hours and driving a private (non-company) vehicle, this would be regarded as a serious breach of the Responsible Drinking policy and could result in the termination of their employment. According to Ms Cashion all employees were given a copy of the Responsible Drinking Policy, which was contained in the Lion Nathan policy handbook.
[18] Ms Cashion outlined the process adopted to deal with the applicant’s breach of the policy. It was her evidence that three meetings with the applicant were held over a period of four days. At the second and third meetings the applicant was accompanied by his union representative. The applicant was questioned about his conduct and given a number of opportunities to put any matters which he felt should be taken into consideration by the company in addressing the conduct. During this time a number of Lion Nathan managers were consulted about the matter and eventually, despite the fact that the applicant was a long serving employee with a good employment record, a decision was taken that, in order to provide for consistent application and maintenance of the integrity of the policy the applicant’s employment would be terminated.
The Submissions
[19] The applicant’s representative submitted that the essential matter for determination by the Commission was not whether drink driving was undesirable, but whether it was a sufficient basis for the termination of the applicant’s employment. The question was put in the context of the applicant’s employment as a process worker in the packaging department at the respondent’s brewery in Launceston.
[20] It was argued that the decision in Selvachandran v Peteron Plastics Pty Ltd 7 addressed the need to consider the employee's capacity and conduct as each relates to the operational requirements of the employer and that these matters need to be considered in a practical and common sense manner. It was submitted that the termination of the applicant’s employment did not result from his capacity or conduct as they related to the operational requirements of the employer.
[21] The contention of the applicant was that the Responsible Drinking Policy relied upon by the company for the termination consisted of a series of rules in relation to drinking and then a statement that any drinking and driving which, “adversely impacts on the company's reputation” could lead to appropriate disciplinary action which included dismissal. It was argued that the policy was phrased in terms of “actual” damage rather than “risk” of damage and there was no evidence of any “actual” damage to the respondent’s reputation. It was also submitted that the applicant’s actions were not so serious as to go to the heart of the contract of employment.
[22] According to the applicant’s representative the termination letter had stated that the applicant’s actions had put the company’s reputation at risk and it was put that this was an unreasonable finding, given that there was no material available to support such a conclusion. It was argued that the policy required the respondent to positively demonstrate that the relevant conduct brought the company into disrepute, damaged the company's interests or was incompatible with the applicant’s duty of good faith to the employer in relation to his employment or that it damaged the employment relationship between the respondent and the applicant or other employees. It was submitted that there was no evidence that any of these things had occurred and therefore no evidence that the conduct had impacted the contract of employment or the employment relationship or that the applicant had in any way repudiated the terms of his employment contract.
[23] In support of these arguments the applicant’s representative relied on the following statement in the decision in HEF of Australia v The Western Hospital: 8
“The conviction of an individual for a criminal offence does not necessarily have any effect upon the person's employment. The question of relevance of the conviction or an employee's alleged misbehaviour to the employee's work should be considered in terms of whether or not the employee has breached an express or implied term of his contract of employment. Whether events occurring outside the actual performance of work will be relevant to the employment relationship will vary from case to case. For example, an accountant who has committed an act of dishonesty for which he or she may have been charged and convicted in the course of some activity outside his employment might be said to have breached a term of his contract of employment.”
[24] It was argued that this statement is authority for the proposition that where a criminal conviction unrelated to work is involved that conviction must be viewed objectively as to how it would affect the person who is convicted continuing their employment. It was unreasonable that by the application of a company policy the respondent should be able to interfere in an employee’s private life. The mere fact that a matter was alcohol related should not enable the company to regulate an employee’s private life and, if the employee does not comply with the policy, terminate their employment.
[25] The applicant had an exemplary employment record and had honestly admitted the drink driving offence. Had he not admitted to the offence the employer may not have become aware of it as it was unlikely that his place of employment would have been published. It was put that the failure by the respondent to adequately take into account mitigating circumstances such as the context of the incident, the applicant’s honesty, his length of service and his employment record was significant. It was argued that Foster v BHP Steel Long Products Division, 9 is authority for the fact that the respondent is obliged to take into account such mitigating factors.
[26] The applicant’s representative submitted that the decision to terminate the applicant’s employment was harsh given his personal and economic situation. It was also said to be unjust and unreasonable as there was no evidence of damage to the company’s reputation and therefore no reason for the termination. The decisions in Ergon Energy 10 and in Rose v Telstra11 were cited by the applicant as relating to similar factual circumstances. It was noted that in Rose v Telstra, Ross VP had reached the following conclusions in relation to out of hours conduct:
“The modern law of employment has its basis on contract not status. An employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment.
The consequent limitations on an employer's right to discipline an employee in respect of out of hours misconduct is most clearly illustrated by the High Court's decision in Commissioner for Railways (NSW) v O'Donnell. In that case the Court held that the fact that an employee had been arrested and charged with an offence did not of itself constitute misconduct warranting termination of employment.”
[27] It was noted that in that case it was found that the applicant’s conduct lacked the requisite connection to his employment and therefore did not provide a valid reason for his termination and put that the matter was, in most respects, the same situation that existed in relation to this matter.
[28] Similarly, it was noted that in the Ergon Energy case the applicant had been required to comply with an out of hours conduct policy. The applicant had breached the policy by engaging in conduct which, allegedly, brought Ergon into disrepute. In that matter it had been determined that it was not for the employer to again punish the applicant for the same criminal act for which he had already been convicted and sentenced. It was submitted that the respondent was seeking to punish the applicant twice in this matter in circumstances where there was no evidence that the applicant’s conduct breached the contract of employment.
[29] The applicant also relied on the decision in Applicant v Respondent 12 where the Full Bench found that:
“It's only in exceptional circumstances that an employer has the right to extend any supervision over the private activities of employees.”
[30] It was put that Ross VP had come to a similar conclusion in Rose v Telstra:
“In some cases the respondent would have an appropriate and proper interest in the activities undertaken during a break, e.g. where they might reflect on the respondent in the conduct of its business or the act of engaging in such activities might indicate unfitness for work or intrinsically improper conduct”
[31] It was submitted for the applicant that the policy relied upon by the employer was so wide that potentially any behaviour that was alcohol related would fit within it and could lead to a termination of employment. It was contended that, as such, the policy was not a policy that the Commission should endorse, or effectively seek to enforce, by finding against the applicant. It was the applicant’s case that there was no direct connection between his work or the workplace, and the offence. The decision to terminate his employment was, therefore, harsh, unjust and unreasonable and out of all proportion to the isolated incident in which the applicant had been involved. The applicant sought reinstatement.
The Respondent’s Submissions
[32] According to the respondent the case ultimately rested on two key questions, whether there was a valid reason for the dismissal; and whether the disciplinary sanction of dismissal was proportionate to the wrongdoing.
[33] It was submitted that the applicant had committed a serious breach of the respondent's Responsible Drinking Policy and that the policy was lawful and reasonable. Accordingly, the decision to dismiss was sound, defensible and well founded, in the sense described in the Selvachandran case, based on the employee's conduct.
[34] The respondent noted that the applicant was seeking to challenge the existence of a valid reason and had argued that it was incumbent upon the respondent to show that the conduct constituted a fundamental breach of an essential condition of employment. It was contended that this argument had been rejected by a Full Bench in the Anetta v Ansett 13 It was submitted for the respondent that, in any event, the conduct of the applicant did amount to serious misconduct. The policy stated that drink driving conduct, whether work related or in a private context, would be treated as a serious breach of the policy. The employer had stipulated in advance its rationale for the policy. The policy included the following relevant statements:
“Everyone should be aware that driving any vehicle whilst above the legal blood alcohol limit may result in incurring certain civil liabilities and/or criminal penalties in addition to serious employment issues.
Any incidence of a person being found to have been driving whilst above the legal blood alcohol limit, whether on company business or not, will be considered to be a serious breach of this policy.
“Anyone who breaches any aspect of this policy will be subject to appropriate disciplinary action which may include dismissal.”
[35] It was put by the respondent that the applicant’s alcohol reading was .154 which was over three times the limit in Tasmania. He had admitted that he chose to drive the back roads, an indication that he knew he was over the limit. The applicant was aware of the policy and knew that he could be dismissed for his conduct. He committed a serious offence which meant not only losing his driver’s licence but attracted a mandatory fine and/or a term of imprisonment. While the respondent conceded that there was no evidence before the Commission as to the penalty actually imposed on the applicant it was submitted that the conduct amounted to criminal behaviour and thus the Commission should be satisfied that the conduct was serious misconduct at common law.
[36] In relation to the requirement to observe a policy and the circumstances in which the Commission could be satisfied that the policy was lawful and reasonable, the respondent relied on the decision in Woolworths v Brown. 14
[37] The applicant’s second challenge to valid reason was that the conduct occurred out of hours in a private setting and was therefore not relevantly connected to the employment. So far as the applicant relied on the decision, it was argued that Rose v Telstra does not establish any principle that should be mechanically applied. The question for decision was whether there was a valid reason for dismissal in the sense of being sound, defensible and well founded, and the fact that the conduct occurred out of hours did not require the application of any separate test. In this respect the respondent relied on a recent Full Bench decision 15 dealing with conduct in an out of work setting. In Farquharson the application was dismissed and there was a finding that, if the conduct had in fact occurred out of hours, that conduct was likely to damage the interests of the employer.16 In particular the Full Bench found that:
“[22] First, while summaries of this sort are useful they are no substitute for the statutory test, namely whether was a “valid reason” in the sense of a reason that is “sound, defensible or well-founded”. Conduct which gives rise to a material risk of damage to an employer’s interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a “valid reason” for termination of employment. Whether such a termination is nevertheless harsh, unjust or unreasonable, notwithstanding the existence of such a “valid reason”, will remain to be determined in all the circumstances.
[25] Secondly, in the present case, cabin crew are required to observe the requirements of Cabin Crew Operations Manual and, indeed, before each flight sign an acknowledgment that they will observe those requirements. Those requirements include a proscription of the sort of conduct that occurred in this case. A failure to comply with such requirements can involve, and in this case did involve, a breach of a reasonable policy with which the employee has been directed to comply amounting to a breach of the contract of employment. In other words, the present case falls within the third bullet point in the summary of principle in Rose v Telstra.”
[38] The respondent also relied on a number of other decisions 17 which, it was submitted, acknowledged that a policy relevantly connected to protecting the legitimate interests of the employer can be directed to risk of damage, not only actual damage. It was put that there is ample recent authority which recognises that a policy can be lawful and reasonable if logically supported and connected to the employer's legitimate interest. If it is accepted that the employer has a legitimate interest in respect of a matter then it can require its employees to behave in a way that protects that interest. It was contended that the respondent had a legitimate interest in avoiding the risk of damage to its reputation and credibility in respect of responsible drinking. A policy which expected employees, as a minimum standard of behaviour, not to drink and drive, whether at work, in a company vehicle or in a private setting, was a reasonable policy. Where all these matters were made out, it was the respondent’s submission that the employer was entitled to require employees to comply with the policy.
[39] In relation to the applicant’s argument that the terms of the policy required actual damage rather than a risk of damage the employer put that it was not a proper reading of the policy. It was noted that no such a proposition was put to Mr Barbour, despite other questions about the policy being put to him in cross-examination. The respondent submitted that the policy referred to conduct that “may” adversely impact the company’s reputation. In any event, the evidence was that the applicant was aware of the drink-driving policy, was aware that it applied to conduct outside work hours and was aware that it could lead to the termination of his employment.
[40] The respondent submitted that evidence as to the company’s legitimate interest was given by Mr Tait and that he was not cross-examined on that evidence. Both his evidence and that of Mr Barbour noted that the company, and its sustainable success, depended upon the social licence to sell the products and that social licence would exist for as long as the community accepted that the benefits outweigh any matters to the contrary.
[41] It was noted that there was evidence before the Commission of the respondent’s level of investment (in terms of money, time and management effort) in responsible drinking projects. In order to maintain credibility as a supporter of responsible drinking the respondent did not want to be associated with irresponsible drinking. Drink driving was a frequent example of irresponsible drinking. The respondent, therefore, had a legitimate interest in expecting its employees not to drink and drive. As the company was represented by its employees, bad behaviour by employees risked damage to the company's credibility and reputation in respect of responsible drinking.
[42] The respondent noted the evidence of risk to the employer's reputation through media exposure. There was evidence of extensive media reporting of drink driving offences in Tasmania, and Launceston in particular. It was apparent from the tendered articles 18 that the Launceston press had a practice of “naming and shaming” drink drivers. It was put for the respondent that it did not have to show that the applicant was actually the subject of media reportage but that his conduct posed the relevant risk, which was a material risk. It was the position of the respondent that in this case it was not a very remote risk, it was a material risk.
[43] The respondent disputed that the decision in Ergon Energy was relevant given that it was decided under a different piece of legislation and on very different facts.
[44] As to proportionality it was argued for the respondent that the applicant bore the onus of persuading the Commission that the disciplinary response of dismissal fell outside what could be reasonably said to be proportionate to the wrongdoing. While mitigating factors were not relevant to the question of valid reason they were of relevance to the question of the reasonableness of the penalty. It was put that it was significant that the applicant put no factors in mitigation of his actual conduct but put matters relating only to his period of good service and the personal hardship of losing his employment. According to the evidence of Ms Cashion all the factors put in mitigation by the applicant were, in fact, taken into consideration when deciding whether or not to terminate the applicant’s employment.
[45] Relying upon the decision of Selak v Woolworths 19 the respondent noted that the question before the Commission had to be considered in the prism of a fair go all round. The evidence of the employer showed that the decision to terminate the applicant’s employment was a difficult one. While the conduct posed a risk of damage to the employer's reputation, once the employer became aware of the contravention of the policy, particularly in circumstances where there was the risk of media coverage, there was an attendant risk of damage or compounding damage to its reputation by not applying the terms of the policy and enforcing it. It was put that the respondent’s core values could be seriously undermined if the clearly communicated policy was not applied with some force.
[46] It was the respondent’s submission that it had demonstrated that there was a valid reason for the termination and the applicant had not demonstrated that the disciplinary sanction applied was out of proportion to the wrongdoing.
[47] Finally, it was noted that the applicant, in choosing not to give any evidence, had left the Commission in an untenable position on the question as to whether reinstatement was appropriate. The applicant did not give evidence under oath as to why he should get his job back. He did not expose himself to any questioning about his drink driving habits or any further questioning about the circumstances of the conduct on the relevant evening, and he did not give any evidence about what impact the loss of his job had on him. There was no evidence about his employment since his dismissal as it impacted on the appropriateness of reinstatement or compensation.
Consideration of the Issues
[48] Section 652(3) of the Act sets out those matters to which the Commission must have regard when determining whether the termination of an applicant’s employment was harsh unjust or unreasonable. I have considered the circumstances of this application in light of those matters.
Valid reason
[49] The question to be determined is whether a breach by the applicant of the employer’s responsible drinking policy constituted a valid reason for the termination of the applicant’s employment.
[50] It was put for the applicant that the policy was unreasonable as it purported to control the applicant’s conduct outside of working hours in circumstances where no harm was caused to the employer by that conduct. The employer’s position was that the policy was adopted to safeguard the employer’s interests in the promotion of “sociable drinking” and to protect the employer’s reputation as a proponent of responsible drinking.
[51] There is no doubt that the applicant was aware of the employer’s responsible drinking policy. The policy was clear that drinking to excess and driving outside of work hours, even on personal business and in a private car, would be a breach of that policy. That the applicant was aware of the full extent of the policy can be deduced from his behaviour in bringing his transgression to the attention of his supervisor. The evidence of Ms Cashion supports a conclusion that the applicant was fully aware of the seriousness attached to any breach of the policy.
[52] An employer is entitled to have policies designed to protect the interests of the business and a legitimate interest in ensuring that such policies are observed by the workforce. There would be little point in having policies that were not enforced. While not every policy adopted by an employer will necessarily be found to be reasonable, particularly in circumstances where that policy purports to constrain the activities of employees outside working hours, some such policies will have the necessary connection to the workplace to be upheld. Where the employer can make out a legitimate interest in the conduct of its employees outside work hours, a policy aimed at regulating that conduct and protecting the employer’s legitimate interests will generally be found to be reasonable. A policy aimed at restraining employees from committing criminal offences outside work hours may not always be seen to be something that is a legitimate interest of the employer. A policy directed at restraining employees from engaging in criminal conduct which could have a deleterious impact on the employer’s legitimate business interests has a sufficient nexus with the employment to be a reasonable imposition on an employee.
[53] A manufacturer of weapons or fireworks would have a legitimate interest in ensuring that its employees did not use its products in a manner which was contrary to law, might bring the product into disrepute or could contribute to the case for greater restriction on sales or even complete prohibition of the product. In my view the same applies to a manufacturer of alcohol.
[54] Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.
[55] I do not accept that it is necessary for the respondent to show that the applicant’s conduct caused actual harm to the respondent’s interests. The Full Bench in Farquharson considered the principles concerning out of hours conduct formulated by Ross VP in Rose v Telstra and then stated:
“First, while summaries of this sort are useful they are no substitute for the statutory test, namely whether there was a “valid reason” in the sense of a reason that is “sound, defensible or well-founded”. Conduct which gives rise to a material risk of damage to an employer’s interests, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a “valid reason” for termination of employment. Whether such a termination is nevertheless harsh, unjust or unreasonable, notwithstanding the existence of such a “valid reason”, will remain to be determined in all the circumstances.”
Notification
[56] The applicant was notified in detail of the reasons for his termination by a letter from the respondent dated 2 April 2009.
Opportunity to respond
[57] Three meetings were held at which the applicant was given ample opportunity to put forward any matters he wished his employer to take into account when determining what course of action it would take as a result of his breach of the Responsible Drinking Policy. After the first meeting the applicant was accompanied by a union representative.
Unsatisfactory performance
[58] The applicant’s termination was in no way related to any unsatisfactory performance on his part. It was common ground that the applicant had a good work record. The decision to terminate his employment was based solely on his drink driving conduct
Size of employer and impact of human resources expertise
[59] The employer is a large multi-national company with dedicated human resources expertise. The procedures adopted in effecting the termination were impacted beneficially by this situation.
Other matters
[60] While matters such as the applicant’s age, skill level and the difficulty of finding alternative employment were put to me as having a bearing on the harshness of the termination of his employment no evidence was called in this regard. The applicant is not yet 50, has a stable employment record and experience in packaging. In the absence of any evidence I am not prepared to accept that the applicant’s personal and economic position rendered the termination of his employment harsh.
Conclusion
[61] I am satisfied that the respondent’s responsible drinking policy was lawful, reasonable and formulated so as to protect the respondent’s legitimate business interests. The applicant was aware that the policy extended to prohibit employees from drink driving including out of work hours and in non-work vehicles. He was also aware that the respondent would consider any breach of that part of the responsible drinking policy a serious breach which could lead to the termination of his employment. Despite this awareness the applicant proceeded to drive while he had a blood alcohol reading of .154. He was apprehended and charged with an offence. I am satisfied, in all the circumstances, that there was a valid reason for the termination of the applicant’s employment.
[62] When the company was made aware of the breach of the policy the applicant was afforded procedural fairness and given a number of opportunities to put forward matters in mitigation. These factors were given due consideration by the respondent but it was determined that the breach was a serious one which was not sufficiently mitigated by the applicant’s otherwise good employment record over some eight years.
[63] In all these circumstances I do not find that the termination of the applicant’s employment was harsh unjust or unreasonable.
BY THE COMMISSION:
COMMISSIONER
Appearances:
P Tullgren of the LHMU for the applicant.
R Dalton of Counsel for the respondent.
Hearing details:
2009
Launceston
11 August.
1 Exhibit D1.
2 Exhibit D1, paragraph 27.
3 Exhibit D2.
4 Exhibit D2, paragraph 10.
5 Exhibit D2, paragraph 11.
6 Exhibit D3.
7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
8 HEF of Australia v Western Hospital (1991) 4 VIR 310, 324.
9 Foster v BHP Steel Long Products Division (1997) 64 SAIRC 217.
10 Ergon Energy Corporation Limited and Training and Employment Recognition Council, QGIG, 18 April 2008, Vol. 187. No 14, pages 230-26.
11 Rose v Telstra [1998] AIRC Q9292 (VP Ross, 4 December 1998).
12 Applicant v Respondent [1999] AIRCFB R1221 (McBean SDP, Duncan DP and Deegan C, 1 February 1999).
13 Annetta v Ansett Australia Pty Ltd (2000) 98 IR 233, 9-10.
14 Woolworths v Brown (2005) 145 IR 285, 23-41.
15 Farquharson v Qantas Airways Ltd (2006) 155 IR 22.
16 Ibid, 56.
17 Woolworths v Brown (2005) 145 IR 285, Hussein v Westpac Banking Corporation (1995) 59 IR 103, Applicant v Respondent [1999] AIRCFB R1221 (McBean SDP, Duncan DP and Deegan C, 1 February 1999).
18 Exhibit D5.
19 Selak v Woolworths (2008) 171 IR 267.
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